Modern Day Litigation, Cyber Defamation, and Law in Sports & Entertainment

Today, March 31, 2015, marks the fifth annualWorld Backup Day. Before you physically step back from wherever you’re standing, that’s not the kind of “backing up” that was intended by the founders of World Backup Day, who were simply a group of concerned Internet users, posting their thoughts and ideas about data security to the international Internet chalkboard Reddit. This backup is a noun, in this case meaning a second (or third, fourth, fifth, etc.) copy of all your digital files, which you store in a different location that the one where the files primarily live (i.e. you don’t keep a backup of your computer on that same computer; it must be stored on another machine or disk drive, whether that be a tangible drive that’s physically located in your home or office, or in the cloud).

Perhaps you’ve already stopped reading, because you thought to yourself, “This is ridiculous—in this day and age, who doesn’t backup their data?” But simply having a backup plan in place isn’t good enough anymore. To guard against the potential catastrophes caused by a total data loss, you also need to test your backup plan, to make sure it works the way it’s supposed to. A recent survey conducted by a well-known IT company revealed that 71% of those surveyed (mostly businesses) have a backup plan in place, but despite having a plan, data loss continues to be a vexing issue. Don’t just dismiss World Backup Day as something for geeks, or something that doesn’t apply to you or your business because you own an external hard drive, and already have your files backed up to it at least daily or weekly. Even worse, don’t think that World Backup Day doesn’t concern you because you use Dropbox… Continue Reading

For the superstitious, and conspiracy theorists, an Orwellian revelation on this Friday the 13th of February. As reported last week by the Daily Beast, Samsung, the world’s no. 1 manufacturer of HDTVs, is warning customers who use voice commands to control their smart TVs that if they speak “personal or other sensitive information, that information will be among the data captured and transmitted to a third party through your use of voice recognition.” So, “What’s the big deal,” you ask? Essentially, Samsung has given notice that their smart TVs have the capability of capturing and transmitting every word that is spoken within range of the device. Although this is something many of us knew, or at least suspected, now it’s out it in the open.

So be advised: If you’re too lazy to pick up the remote, you may want to keep your conversation with the TV as direct and non-incriminating as possible. Don’t talk about tax evasion, drug use. And definitely don’t try out your Violet Crawley impression.

In this age social media justice, sooner or later you’re going to have an encounter with a negative online review, whether your a business owner, or simply a consumer. It seems like it’s becoming an accepted aspect of our lives. Increasingly, however, consumer reviews posted on various Internet sites are becoming the subject of litigation. Continue Reading

By now, everyone has heard about the $10 million defamation lawsuit filed against ESPN by a disgruntled NY Yankees “fan” who became the butt of a joke after falling asleep during a Yankees–Red Sox game this past April. The lawsuit was filed July 3rd in a New York state supreme court in Bronx County (yes, that’s where Yankee Stadium is), and has since been widely publicized by all the big networks. What the networks aren’t telling you is that the lawsuit is garbage. Literally, the claims in the complaint are so utterly baseless that the paper it was printed on now has less value than it did before it left the copier. Continue Reading

The proverbial ink wasn’t even dry from yesterday’s recap of Edward Snowden’s chilling account of the extent to which the government can literally take control of any cellular phone, when the Supreme Court of the United States (SCOTUS) published its landmark opinion in Riley v. California, which requires police to get a warrant before searching a cellular phone. Despite the ubiquitousness of cellular phones for over a decade, not to mention smartphones and the iPhone, during more than half that time, until yesterday, SCOTUS had not pronounced any sort of constitutional threshold governing the search of cellular devices. In 38 short pages, that is all history. But what does this landmark decision really mean to most of Americans? Continue Reading

Although the U.S. government probably wants us to think it’s yesterday’s news, last month NBC News broadcast an exclusive hour-long interview with Brian Williams and the most wanted man in the world—Edward Snowden—in his first ever American television interview. In case you missed it (it ran at 10 p.m. EST on Weds. May 28), the full interview is available at NBCnews.com. Among the highlights, Snowden explains that any advanced government intelligence service can take over your cell phone, regardless of whether it’s a smartphone, a prepaid “disposable” phone, and regardless of whether it’s even turned on!

The NSA, the Russians, the Chinese—any intelligence service in the world that has significant funding, and a real technological research team—can own [any] phone the minute it connects to their network. As soon as you turn it on, it can be theirs. They can turn it into a microphone, they can take pictures from it, they can take the data off of it.

While Congress mulls over proposed federal legislation that would require smartphone manufacturers to incorporate a “kill switch” feature in all new devices sold, Minnesota just beat them to punch, becoming the first state to enact such a law. The so-called kill switch is a feature that would allow devices to be completely disabled—remotely—as a way to discourage and deter thieves from what has become the fastest growing street crime nationwide. Continue Reading

Every spring I head to Chicago for the best annual conference/trade show in the legal industry: ABA Techshow (a/k/a #ABATECHSHOW). The event is a literal who’s who at the intersection of law and technology. It gives geeks like me a chance to rub elbows and compare notes with other tech-savvy lawyers from all over the country (and even the world). One of Techshow’s highlights is the exhibitor hall, where several hundred developers, vendors, and service providers show off their latest wares to those of us who tend to be early adopters.

I made a connection with Ian O’Flaherty, founder & CEO of Lit Software, which is the company behind the wildly popular legal iPad app TrialPad, and the hopefully-soon-to-be-wildly popular TranscriptPad. I’ve always been partial to TranscriptPad because I find that I use it more often than TrialPad, given the lack of cases that actually go to trial. At Techshow 2014, the folks at Lit Software had cameras rolling when they asked several attorneys, including yours truly, about why they like TranscriptPad.

Disclosure: When it first launched, the makers of TranscriptPad provided me with a free copy of the app to write a review. I haven’t received any compensation or other benefit from them (other than the benefit of using the app almost every day in my law practice!).

In its most basic sense, a venue is the place where an event is held. In law, it’s pretty much the same—venue refers to the location of the court where a trial takes place. In many, if not most circumstances, it’s not difficult to determine the proper venue for a trial, especially in criminal cases, where venue is laid, usually, in the county or jurisdiction where the crime was committed. Historically, the only time when venue wasn’t decided that way was if the crime happened simultaneously in more than one jurisdiction—e.g., conspiracies, and other crimes that are carried out in multiple steps. But what about when the accused is charged with committing a crime in a state that’s 1000+ miles away from where he lives, and to which he’s never even been? That’s what happened to Andrew “Weev” Auernheimer, an Arkansas native and resident who was charged, tried, and found guilty in a New Jersey federal court, and then sentenced to three-and-a-half years in federal prison. You’re probably thinking that he must’ve done something really bad, right? You be the judge—Auernheimer was convicted of violating a federal statute because, essentially, he forwarded a list of email addresses to a reporter. Continue Reading

It’s a good idea to check your spam/junk email folder periodically. I usually do it once a day. Most of the time the messages in my junk folder are just that—junk. But occasionally, something important winds up in the spam folder. Usually it’s because the sender forgot to include a subject line, or the body of the email has no content except for a hyperlink (you do know that you should NEVER click on such a link, right?). The latter was the case this morning, when I discovered an email from one of my kids’ teachers in my spam folder, only, in this case the email was actually spam. Apparently, the sender’s email account was hijacked, and used to spam everybody in their contacts list. It happens every once in a while that I get spam from someone I actually know, and I find it more and more puzzling each time it does.

Pro tip: choosing “password” as your online password is not a good idea. In fact, unless you’re hoping to be an easy target for hackers, it’s the worst password you can possibly choose.

The reason I find it puzzling is that in spite of all the news of online security breaches, and the heightened awareness and frequent reminders to use strong passwords for your email and online accounts, people are still using passwords that are easily hackable. It’s true, I have no idea what the password was to the email account that spammed me this morning, but based on the fact that it’s an AOL mail account, and stories like this, I have a pretty good hunch that it was fewer than 10 characters, and probably could be found in any dictionary. That’s because research shows that the most popular password last year was ‘123456.’ Make no mistake, the purpose of this blog isn’t to provide handy consumer electronics tips, but when I get spam from people who are both highly educated and oftentimes business owners, I feel compelled to write a post like this, in hopes that whoever reads it will appreciate the message because it’s coming from an attorney.

A good password is like Chinese arithmetic: it’s unrecognizable, not found in the dictionary, long, and contains letters, numbers, and symbols.

Although it should go without saying, my firm’s retainer agreements now contain a clause about password strength and security. Because most of my clients are fairly tech savvy, I don’t get many questions about this clause, but when I do, I usually send them a link to this blog post written by Jeff Shiner, CEO of a software company that makes one of the top-ranked password protection applications for more than five years. Even though the article is almost three years old the information is still just as relevant as it was when it was written. At the very least, it serves as a starting point for taking control of your online data. Recently, I read a great guide to secure passwords written by data security guru Bruce Schneier. Even if you think you have a good password already, it’s worth checking out.

About Joe

Before I became an attorney, I played the saxophone for a living. Over the years, I played with the likes of Grammy-award winners Ray Charles, The Four Tops, and Tom Harrell. I lived in Brooklyn, Manhattan, eventually New Jersey, and oftentimes out of a suitcase. I made the decision to go back to law school, because I felt like I had an incredibly unique perspective to offer to my clients.

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